MURARI MOHAN KHOMARI Vs. KHIRODE NATH JANA

JUDGEMENT

(1.) THIS appeal is by the plaintiff in a suit on a mortgage. The mortgagor had sold the mortgaged property to defendant 2, who contested the suit. His defence was that the mortgage had been satisfied. The mortgage bond was produced in Court by the plaintiff and it contains no endorsement of satisfaction. Defendant 2 stated to the Court that the bond had been shown to him by his vendor, that is to say, the mortgagor, defendant 1, at the time of the sale to him, and that at that time that bond contained an endorsement of satisfaction. Both the Courts below dismissed the suit, holding on certain oral evidence that the bond had been satisfied and the mortgage redeemed, The learned Munsif found that he had to explain away the fact that the mortgage bond produced in Court, the genuineness of which was not disputed, bore no endorsement of satisfaction. He, therefore, resorted to the thoroughly improper proceeding of having something done by a pleader, in the way of proof, to his private satisfaction that it was possible to remove writing from paper without leaving a trace of the writing having been there. The learned Munsif should have had this performance done in Court and in the presence of the other side. The learned Subordinate Judge entirely ignored this matter. Therefore, what one finds is that the learned Subordinate Judge, without explaining away a very serious circumstance, professed to rely, not on the testimony of his own eyes, but on the statement of witnesses who could lie. The question being one of fact, we must send this case back, so that the appeal may be reheard.

(2.) THE judgment and decree of the lower appellate Court are set aside and the case is sent back to that Court for a rehearing. Costs in this appeal will abide the result,